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North Dakota Surface Water Drainage Law

Water issues usually fall into two broad categories of "wanting to acquire water" or "wanting to dispose of water."  This page focuses on the question of disposing of surface water from rain and snowmelt; restated, this page addresses drainage.  The discussion focuses on North Dakota law; federal drainage law is mentioned, but not fully discussed on this page.  This page addresses just one part of the complex array of drainage issues. 

This page is for educational purposes only.  Visitors are urged to seek competent professional advice for answers to their specific questions.

Is drainage regulated in North Dakota?

Yes.  For example, a permit from the state is needed in some situations before landowners can drain their land.

When is a state drainage permit needed in North Dakota?

A permit is needed before a landowner can drain a watershed of more than 80 acres.

"Any person, before draining a pond, slough, lake, or sheetwater, or any series thereof, which has a watershed area comprising eighty acres [32.37 hectares] or more, shall first secure a permit to do so." North Dakota Century Code (N.D.C.C.) 61-32-03.

For example, a permit is needed to drain a half-acre wetland in a 100-acre watershed.  The criterion for determining whether a permit is required is not the size of the wetland or pond, but the size of the watershed in which the wetland is located.

A permit is required whether the drainage involves constructing a ditch, pumping to remove the water, extending or modifying an existing drain, or filling a wetland. North Dakota Administrative Code (N.D.A.C.) § 89-02-01-03.

A tiling drainage system also requires a permit.  North Dakota Attorney General Letter Opinion, 2008-L-14.

Some definitions (N.D.A.C. § 89-02-01-02)

• "Watershed" means the area which drains into a pond, slough, lake, or sheetwater, or any series thereof.  Also see N.D.A.C. § 89-02-01-06
• "Pond" means a well-defined land depression or basin that holds water in normal years throughout the summer. Ponds generally go dry only in years of below normal runoff and precipitation.
• "Series of ponds, sloughs, lakes, or sheetwater" means two or more ponds, sloughs, lakes, or sheetwater that are hydrologically linked naturally or artificially.
• "Sheetwater" means shallow water that floods land not normally subject to standing water.
• "Slough" includes two types:
  • a. Seasonal slough: a depression which holds water in normal years from spring runoff until mid-July. In years of normal runoff and precipitation, a seasonal slough is usually not tilled but can be used for hayland or pasture. In low runoff, dry years, these areas generally are tilled for crop production, but commonly reflood with frequent or heavy summer or fall rains.
  • b. Temporary slough: a shallow depressional area that holds water or is waterlogged from spring runoff until early June. In years of normal runoff and precipitation, a temporary slough is usually tilled for crop production. In years of high runoff or heavy spring rain, a temporary slough may not dry out until mid-July and generally would not be tilled but may be used for hayland or pasture. A temporary slough frequently refloods during heavy summer and fall rains.

Draining when a state permit is not needed

No permit is needed if the watershed being drained is less than 80 acres.  Instead, North Dakota applies a common law ( legal concepts that have been defined by the courts through a series of lawsuits and decisions ) doctrine of reasonable use.  The primary consideration in the reasonable use doctrine is "what impact will the drainage have on downstream landowners."

Defining "Reasonable Use"

Excerpts from Martin v. Weckerly, 364 N.W.2d 93 (N.D. 1985) -- a North Dakota Supreme court decision in which the justices describe "reasonable use" as it applies to surface water drainage.

• "The reasonable-use concept is based upon the principle that although every landowner has the right to the use and enjoyment of his property, such use must be reasonable so as not to cause unnecessary injury to others. 

• "Therefore, drainage of surface waters complies with the reasonable-use rule if:

  (a) There is a reasonable necessity for such drainage;

  (b) If reasonable care be taken to avoid unnecessary injury to the land receiving the burden;

  (c) If the utility or benefit accruing to the land drained reasonably outweighs the gravity of the harm resulting to the land receiving the burden; and

  (d) If, where practicable, it is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or if, in the absence of a practicable natural drain, a reasonable and feasible artificial drainage system is adopted.

• "Consequently, the objective of the reasonable-use rule is to determine whether or not circumstances exist which will justify a court in shifting the loss from the person harmed ( the downstream landowner ) to the person causing the harm ( the 'draining' landowner ).
• "The reasonable necessity requirement must be considered in light of the policy established by the reasonable-use rule to equitably balance the developing and improving of land with any consequential harm to other property.
• "... Weckerly conducted no investigation concerning the impact his drainage would have on downstream landowners and that he otherwise took no significant action to avoid unnecessary harm to Hanson's property.
• " The trial court found Weckerly's drainage was the proximate cause of the damage to Hanson's property.
• " Weckerly asserts there was no proof that his improved drainage caused any abnormal runoff and that any high runoff was attributable to unseasonably high rainfall... Weckerly claims that drainage from other upstream landowners was responsible for the bulk of the runoff, and consequently the bulk of the drainage, to Hanson's property. We find Weckerly's argument unconvincing. Weckerly voluntarily consented to the drainage of water onto his land by upstream landowners. It was, or should have been, reasonably foreseeable to Weckerly that the commingling and subsequent drainage of his surface water with that of upstream landowners could cause harm to Hanson's property.
• " The law should not inhibit reasonable development and improvement of land, but neither should it allow a landowner to expel surface water without regard to the consequences."

Also "maintaining a (natural) drainway in its natural state does not require a drainage permit." See Nilson v. Markestad, 353 N.W.2d 312, 314 (N.D. 1984)." Ness v. Ward County Water Resource Dist., 1998 ND 191, 585 N.W.2d 793 (http://www.court.state.nd.us/_court/opinions/980072.htm)

Draining when a state permit is needed

The general rule is that a permit is required before draining a watershed of more than 80 acres.  The process of obtaining a drainage permit is collaboratively administered by the state engineer and local water resource management boards.

State engineer

The state engineer is appointed by the state water commission (N.D.C.C. § 61-03-01). Some responsibilities of the state engineer include

• serving as secretary and chief engineer for the (state water) commission  (N.D.C.C. § 61-03-01); and
• when requested by the county commissioners of any county, cooperate with the commissioners in the engineering work required to lay out, establish, and construct any drain to be used by any county or counties for the purpose of diverting floodwaters, lakes, or watercourses; aid and assist counties in making preliminary surveys and establishing systems of drainage (N.D.C.C. § 61-03-08).

Water Resource Management Board

In establishing water resouce management districts, the legislature declared that the most efficient and economical method of managing, conserving, protecting, developing, and controlling water and related land resources is to establish water resource districts encompassing all of the geographic area of the state, and emphasizing hydrologic boundaries.  Source:  N.D.C.C. § 61-16.1-01.

Web site listing ND's water resource management boards -- http://www.swc.state.nd.us/4DLink5/4dcgi/resourceboards/Water%20Links

Most water resource districts are organized by county, but several are organized by watershed, e.g., Lower Heart, Willow Creek, and Rush River.

Selected authorities of water resource management board

• Initiate legal action to compel an entity responsible for maintaining and repairing a bridge or culvert to remove all dirt, rocks, weeds, brush, shrubbery, other debris, and any artificial block which decreases the flow of water through the bridge or culvert. N.D.C.C. § 61-16.1-09(16)
• Coordinate proposals to install, modify, or construct culverts and bridges in an effort to achieve appropriate size and maximum consistency of road openings. The department of transportation, railroads, counties, and townships shall cooperate with the districts in this effort. N.D.C.C. § 61-16.1-09(21)
• Encourage landowners to retain water on the land to the maximum extent possible, and carry out the water management policy that upstream landowners and districts that have altered the hydrologic scheme share with downstream landowners the responsibility of managing and controlling surface waters. N.D.C.C. § 61-16.1-10(4)
• In planning any surface water project, address and consider the downstream impacts caused by the project. A determination of whether to proceed with the construction of a project shall be based on the following principles:

  a. Reasonable necessity of the project.
  b. Reasonable care to be taken to avoid unnecessary injury by fully considering all alternatives.
  c. Whether the benefit from the project reasonably outweighs the adverse impacts resulting from the project.  N.D.C.C. § 61-16.1-10(5)

• Require that appropriate easements be obtained when projects will cause an adverse impact to lands of other landowners. N.D.C.C. § 61-16.1-10(6)

Other statutes (N.D.C.C.) relating to operations of water resource districts

§ 61-16.1-41.1. Removal or placement of fill.
§ 61-16.1-42. Drains along and across public roads and railroads.
§ 61-16.1-43. Construction of bridges and culverts - Costs.
§ 61-16.1-44. Culvert and pipe arch bids and acceptance.
§ 61-16.1-45. Maintenance of drainage projects.
§ 61-16.1-46. Establishing new drains in location of invalid or abandoned drain.
§ 61-16.1-47. Drain kept open and in repair by water resource board.
§ 61-16.1-48. Assessment of costs of cleaning and repairing drains.
§ 61-16.1-49. Petition for a lateral drain - Bond of petitioners.
§ 61-16.1-50. Drains having a common outlet may be consolidated.
§ 61-16.1-51. Removal of obstructions to drain - Notice and hearing - Appeal - Injunction - Definition.

Other government entities

A frequent question is what role do other local government entities have in managing drainage.

• County commissions --
• Township authorities --

  "We have construed those statutes as providing water resource boards with authority to direct townships to install culverts to accommodate drains established by law, but not in natural watercourses or to preserve a natural drainway for surface waters. "[T]ownship boards, and not water resource districts, have supervisory authority under N.D.C.C. § 24-03-06 to decide whether to install a culvert beneath a township road to preserve a natural drainway for surface waters."

  "While water resource districts have been given broad powers to control waters within their jurisdictions, they have not been given authority to make the decision to install a culvert under a township road in a natural watercourse. Rather, water resource districts have the authority to direct a township to install a culvert to accommodate a drain."

  Excerpts from Burlington Northern v. Benson County Water Resource District, 2000 ND 182, 618 N.W.2d 155 (http://www.court.state.nd.us/_court/opinions/990368.htm)

"Clearly, the Legislature envisioned township and water resource district boards working together on such decisions. The Legislature has also made it clear, however, that a board of township supervisors, not a water resource district, has the authority to install culverts beneath township roads when necessary to preserve the natural drainage of surface waters." Excerpt from Ness v. Ward County Water Resource Dist., 1998 ND 191, 585 N.W.2d 793 (http://www.court.state.nd.us/_court/opinions/980072.htm)

• State Water Commission --
• ND Department of Transportation --
• ND Game and Fish Department --

How does one apply for a state drainage permit?

A landowner can apply for a drainage permit by completing State of North Dakota Application to Drain form (SFN 2830).  This Application to Drain can be requested at http://www.swc.state.nd.us/4dlink9/4dcgi/GetSubCategoryRecord/Permits/Drain%20Permits or by calling (701)328-4960. Application forms also may also be obtained from the local county Water Resource Board. As there is a separate application form for tile drains, please specify the type of drainage system you are proposing when requesting an application form.

• The permit application is submitted to the state engineer. N.D.C.C. §61-32-03 and N.D.A.C. §89-02-01-07.
• The state engineer then refers the application to the water resource district or districts where the watershed is located for the boards's consideration and approval, but the state engineer may require that applications proposing drainage of statewide or interdistrict significance be returned to the state engineer for final approval. N.D.C.C. § 61-32-03 and N.D.A.C. §89-02-01-08.
• Drainage with statewide or interdistrict significance --

1. Drainage which would affect property owned by the state or its political subdivisions.
2. Drainage of sloughs, ponds, or lakes having recognized fish and wildlife values.
3. Drainage or partial drainage of a meandered lake.
4. Drainage which would have a substantial effect on another district.
5. Drainage which would convert previously noncontributing areas (based on twenty-five year event - four percent chance) into permanently contributing areas.
6. For good cause, the state engineer may classify any proposed drainage as having statewide or interdistrict significance, or the state engineer may determine that certain proposed drainage is not of statewide or interdistrict significance." N.D.A.C. § 89-02-01-09

Criteria for granting a state permit

A permit may not be granted until an investigation discloses that the quantity of water which will be drained will not flood or adversely affect downstream lands.   The person proposing the drain will pay for the investigation.   N.D.C.C. §61-32-03 and N.D.A.C. §89-02-01-09.2.

Factors to be considered

• volume of water to be drained and its impact on the receiving wartercourse
• possible adverse effects on downstream lands
• design of drain
• impact on flooding in the watershed
• impact on waterbodies with recognized fish and wildlife values
• impact on agricultural lands
• whether (flowage?) easements are required

Observation -- The focus of the criteria is on minimizing the adverse impact to downstream landowners (which is consistent with the common law reasonable use doctrine).  Preservation of wetlands is not the primary statutory criterion in determinng whether a drainage permit should be granted.  Exception -- the project's impact on waterbodies with recognized fish and wildlife values.

If the investigation shows that the proposed drainage will flood or adversely affect lands of downstream landowners, the water resource board may not issue a permit until flowage easements are obtained. The flowage easements must be filed for record in the office of the recorder of the county or counties in which the lands are situated. N.D.C.C. §61-32-03

"The obvious purpose of requiring a flowage easement is to protect downstream landowners and insure that they receive just compensation in the event of flooding or an adverse impact on their land." Larson v. Wells County Water Resource Board, 385 N.W.2d 480 (N.D. 1986) (http://www.court.state.nd.us/_court/opinions/11035.htm)

Exception to the general rule of when a state permit is needed

A drainage permit is not required for the construction or maintenance of any existing or prospective drain constructed under the supervision of a state or federal agency, as determined by the state engineer. N.D.C.C. §61-32-03; N.D.A.C. § 89-02-01-5(2).

• Example -- Maintaining a drain

A permit is not required to maintain a drain.  N.D.A.C. §89-02-01-05(1). "Maintenance" means removal of silt and vegetation from a drain. Maintenance does not include deepening or widening a drain. N.D.A.C. §89-02-01-02(7).

• Example -- Modifying a drain

A permit is required to modify a drain. Modification includes deepening, widening, or extending a drain.  N.D.A.C. §89-02-01-03(6).

Process of reviewing a state permit application

Upon receiving an application for a drainage permit:

• the board will arrange a meeting;
• give notice of the meeting by publication in newspaper, and by mail to affected landowners; state game and fish; state department of health; state, county and township if the drain will cross a public roadway; state engineer; and others who asked to be notified;
• applicant must submit all documents intended to be used at the meeting at least 14 days before the meeting;
• the board will allow relevant oral and written evidence to be presented at the meeting;
• the meeting must be recorded;
• board must make decision on application within 60 days of receiving the application (N.D.A.C. § 89-02-01-09.3)
• if application is approved, all documents will be transferred to the state engineer; notice will be sent to all interested person with the board's rationale; and the board must specify the location and size of the areas to be drained;
• if application is denied, board must provide its rationale to the applicant; this decision can be appealed to the district court. (N.D.A.C. § 89-02-01-09.1)

In reviewing an application of a statewide or interdistrict significance

• the state engineer will consider the information received from the board, information the engineer assembles, and information the engineer requests from other sources (N.D.A.C. § 89-02-01-09.4)
• the state engineer will provide information about its decision to interested persons (N.D.A.C. § 89-02-01-09.5)
• Within 30 days after the decision, a hearing can be requested (N.D.A.C. § 89-02-01-09.6); hearing procedure is set forth in N.D.A.C. § § 89-02-01-09.7 to -09.10

Drainage permits can be modified by the government to protect public health, safety and welfare. (N.D.A.C. § § 89-02-01-09.11)

Construction must begin within two years of receiving the permit (unless extended for one more year).   Construction must proceed with good faith efforts and satisfactory progress. (N.D.A.C. § § 89-02-01-09.11 and -09.12)

Emergency drainage

The state engineer may adopt rules for temporary permits for emergency drainage. N.D.C.C. §61-32-03

An emergency ... is a situation which if not addressed immediately will cause significant damage to persons or property which would not occur under normal circumstances. An emergency may exist as a result of an extremely wet cycle.  However, damages caused by deliberate acts of any individual do not constitute an emergency ... unless the damage can be alleviated without harm to other persons or property. (N.D.A.C. § 89-02-05.1-04)

• Application for an emergency drain must be sent simultaneously to the board and the state engineer.
• Application will be reviewed for completeness by the board and the state engineer.
• Board and state engineer will make a preliminary determination as to the existence of an emergency.
• As soon as possible, a conference call or an onsite meeting among the board, the state engineer, and other affected parties, as determined by the state engineer, must be held. The applicant or any other affected party may make a statement concerning the emergency drainage application during the conference call or onsite meeting.
• Any conference call or onsite meeting must be electronically recorded.
• During the call or meeting, but after all parties have been given an opportunity to present their views, the board shall make a recommendation to the state engineer whether or not the license should be granted. (N.D.A.C. § 89-02-05.1-06)
• After the conference call or onsite meeting, the state engineer shall consider the written information received, the matters discussed during the conference call or onsite meeting, and the recommendation of the board, and (based upon this information) decide whether the emergency license should be granted.
• If the license is granted, the state engineer may impose any condition the state engineer deems necessary to protect public or private interests; a condition may include [requiring a bond].
• The license must be limited to no more than six months. (N.D.A.C. § 89-02-05.1-07) A license [for an emergency drain] has a duration of not more than six months unless extended. (N.D.A.C. § 89-02-05.1-03)

• A license for an emergency drain does not relieve the applicant of liability for damages resulting from any activity conducted pursuant to the license.  (N.D.A.C. § 89-02-05.1-10)

• If the drain is to be permanent, the applicant shall submit a drainage permit application to the state engineer. If the application is submitted no later than 30 days prior to the date the emergency license expires, the term of the emergency license is extended until final action on the drainage permit application has been taken, unless the state engineer determines that the drain should be closed to prevent damage to public or private interests. ( N.D.A.C. § 89-02-05.1-08 )

• If an application for a permanent drainage permit is not submitted 30 days prior to the date the emergency license expires, the applicant shall immediately make preparations to close the drain unless the applicant has applied in writing for an extension from the state engineer and that extension has been granted. Preparations must include entering by other individuals, obtaining any permission necessary from other landowners, and obtaining any permission or authorizations necessary. The drain must be closed on or before the license expires. The applicant shall keep the board and the state engineer informed of the applicant's progress in closing the drain. (N.D.A.C. § 89-02-05.1-09)
  

Concerns/complaints about drainage

Complaints about unauthorized drainage are filed with the local water resource management board.

• Only a landowner who is adversely impacted can file a complaint about an unauthorized drain constructed before January 1, 1975, but any person may file a complaint about an unauthorized drain constructed after January 1, 1975. (N.D.C.C. § 61-32-07)
• Upon receipt of a complaint, the water resource board shall promptly investigate and make a determination of the facts (N.D.C.C. § 61-32-07)
• The board shall make the decision within a reasonable time, not to exceed 120 days, after receiving the complaint. (N.D.C.C. § 61-32-08)
• If the board fails to investigate and make a determination concerning the complaint, the person filing the complaint may file it with the state engineer. (N.D.C.C. § 61-32-08)

Board Action

• If, after the first complaint, the board's opinion is that the complaint is frivolous, the board may assess the costs of the frivolous complaint against the complainant. (N.D.C.C. § 61-32-07)

• If the board determines that the drain is unauthorized, the board shall notify the landowner by registered mail; a copy of the notice must also be sent to the tenant, if known.
• The notice must specify the nature and extent of the noncompliance, and state that if the drain is not closed within a reasonable time (as the board determines, but not less than 15 days), the board will have the drain closed and assess the cost of the closing against the property of the responsible landowner(s).
• The affected landowner has 15 days from the date the notice is mailed to demand, in writing, a hearing on the matter. (N.D.C.C. § 61-32-07)

• A. Demand hearing before water resource management board

  Upon receipt of a demand for a hearing, the board shall set a hearing date within 15 days from the date the demand is received. (N.D.C.C. § 61-32-07)

  • In the event of an emergency, the board may immediately apply to the appropriate district court for an injunction prohibiting the landowner or tenant from constructing or maintaining the drain, and ordering the illegal drain be closed. (N.D.C.C. § 61-32-07)
  • The board shall notify all parties of its decision by certified mail. (N.D.C.C. § 61-32-08)

• B. Appeal to district court

A person aggrieved by action of the board may appeal the decision of the board to the district court.  A hearing as provided for in this section is not a prerequisite to an appeal. (N.D.C.C. § 61-32-07)

A court case that may be of interest -- Graber v. Logan County Water Resource Board, 1999 ND 168, 598 N.W.2d 846 (http://www.court.state.nd.us/_court/opinions/990029.htm)

This case involved several appeals and provides an example of the appeals process.

Also, "the hearings in this case focused mainly on whether the drainage ditch on Graber's property was dug before or after 1957. The law in effect at the time a drain is constructed controls, ... and the ... statute ... requiring drainage permits, was not enacted until 1957."

• C. Appeal to state engineer

The board's decision may be appealed to the state engineer by any aggrieved party. (N.D.C.C. § 61-32-08)

• The appeal to the state engineer must be made within 30 days from the date notice of the board's decision has been received. The appeal must be made by submitting a written notice to the state engineer and set forth the reason why the board's decision is erroneous. (N.D.C.C. § 61-32-08)
• The appealing party shall also submit copies of the written appeal notice to the board and to the nonappealing party. (N.D.C.C. § 61-32-08)
• Upon receipt of this notice the board, if it has ordered a drain to be closed, is relieved of its obligation to close the drain.(N.D.C.C. § 61-32-08)
• The state engineer shall handle the appeal by conducting an independent investigation and making an independent determination. The state engineer may enter property affected by the complaint for the purpose of investigating the complaint. (N.D.C.C. § 61-32-08)
• The state engineer shall investigate and make a determination, either by action against the board, or by personally conducting the investigation and personally making the determination. N.D.C.C. § 61-32-08
• If the state engineer determines the drain is illegal, the state engineer shall take one of three actions:

  1. Notify the landowner by registered mail at the landowner's post-office address of record;
  2. Return the matter to the jurisdiction of the board along with the investigation report; or
  3. Forward the drainage complaint and investigation report to the state's attorney.
  (N.D.C.C. § 61-32-08)

1.  If the state engineer decides to notify the landowner, the notice must specify the nature and extent of the noncompliance and state that if the drain is not closed within such reasonable time as the state engineer shall determine (but not less than thirty days), the state engineer shall close the drain and assess the cost against the property of the responsible landowner(s). (N.D.C.C. § 61-32-08)

• Demand hearing before state engineer

  The affected landowner may, within 15 days of the date the notice is mailed, demand, in writing, a hearing on the matter. Upon receipt of the demand, the state engineer shall set a hearing date within 15 days from the date the demand is received. (N.D.C.C. § 61-32-08)

• Appeal to district court

  Any person aggrieved by action of the state engineer may appeal to the district court. A hearing by the state engineer is required before such an appeal. (N.D.C.C. § 61-32-08)

2. If the state engineer decides to return the matter to the board, a complete copy of the investigation report shall be forwarded to the board and it shall include the nature and extent of the noncompliance. Upon having the matter returned, the board shall carry out the state engineer's decision (N.D.C.C. § 61-32-08)

3. If the state engineer decides to forward the drainage complaint to the state's attorney, a complete copy of the investigation report must also be forwarded and include the nature and extent of the noncompliance. The state's attorney shall prosecute the complaint. (N.D C.C. § 61-32-08)

Court action

In addition to the penalty imposed by the court in the event of conviction under this statute, the court shall order the drain closed or filled within such reasonable time period as the court determines, but not less than 30 days. If the drain is not closed within the time prescribed by the court, the court shall procure the closing of the drain and assess the cost against the property responsible landowner(s). (N.D.C.C. § 61-32-08)

"The authority granted in this section may only be exercised for drainage constructed after January 1, 1987." N.D.C.C. § 61-32-08

Penalty

Any person draining without first securing a permit to do so ... is liable for all damage sustained by any person caused by the draining, and is guilty of an infraction. (N.D.C.C. § 61-32-03)

Is a Section 404 (Federal) Permit Required to Drain a Wetland?

The discussion thus far has addressed North Dakota law, but Section 404 of the the federal Clean Water Act merits a brief discussion.

Historically the answer to the question of whether a section 404 permit was necessary to drain a wetland has been no, a permit was not mandated. Permits were needed to discharge a pollutant into water, including discharges of dredged materials. But as long as you removed material without discharging materials, the removal would not require a 404 permit. Thus landowners could dig a ditch to drain a wetland, deposit the removed material away from the water, and do this without a permit.

It is well documented that 404 permits were not required for wetland drainage. Congress did not respond to suggestions that 404 permits be required for wetland drainage, so the agencies revised their regulations to include wetland drainage within the jurisdiction of 404 permits.

Incorporating Wetland Drainage into the Scope of Section 404

The law is clear that a discharge of dredged material into waters of the United States requires a section 404 permit. Equally clear, the regulations provided an exception for incidental fallback; that is, incidental fallback associated with dredging or digging would not be considered a discharge. Thus, a landowner could construct a ditch to drain a wetland without a 404 permit as long as the removed material was not deposited in waters of the United States. Restated, landowners could dig the ditch, pile the dirt on a dry land, and escape the section 404 permit requirement.

Recognizing that section 404 did not reach wetland drainage, the Corps and EPA refined their stance. First, they stated that it regards ditching with equipment to result in a discharge even if the dirt was deposited on dry land. This refinement essentially removed the incidental fallback exception for ditching and drainage.

The Corps and EPA then indirectly defined discharge (but this also applies to filling) as any activity that destroys an area of waters of the United States (even though the regulation does not state whether the destruction is due to drainage, fill or both). Likewise, they defined discharge as any inconsequential degrading of an area of waters of the United States.

By eliminating the incidental fallback exception for ditching and defining discharge to include any degradation of a wetland (regardless of whether it was degraded by fill or drainage), the Corps and EPA brought wetland drainage into the 404 permitting processes without a change in the statutory law.

To protect themselves from a charge of overreaching, the agencies provide an exception; that is, if the person can establish that the activity will not degrade an area of waters of the United States, a permit is not required. Since drainage is intended to convert a wet area to a dry area, proving that the activity will not degrade an area of waters of the United States would be difficult; in most cases, impossible.

Conclusion

The refined regulations have altered the answer to the question; section 404 permits are now required to drain a wetland. The next question is whether this regulation will withstand judicial review, or have the agencies stepped beyond the authority granted to them by Congress.

Appendix -- 33 CFR 323.2 Definitions [for section 404 permits under the federal Clean Water Act].

• (d)(1) . the term discharge of dredged material means any addition of dredged material ., including redeposit of dredged material (other than incidental fallback) [into] the waters of the United States.
• (c) The term dredged material means material that is excavated or dredged from waters of the United States.
• (d)(2)(ii) Incidental fallback is the redeposit of small volumes of dredged material that is incidental to excavation activity in waters of the United States when such material falls back to substantially the same place as the initial removal. Examples of incidental fallback include soil that is disturbed when dirt is shoveled and the back-spill that comes off a bucket when such small volume of soil or dirt falls into substantially the same place from which it was initially removed.
• (d)(2)(i) [However, the] Corps and EPA regard the use of mechanized earth-moving equipment to conduct . ditching . in waters of the United States as resulting in a discharge of dredged material unless project-specific evidence shows that the activity results in only incidental fallback.
• (d)(3) The term discharge of dredged material does not include the following:

  (i) .

  (ii) Activities that involve only the cutting or removing of vegetation above the ground (e.g., mowing, rotary cutting, and chainsawing) where the activity neither substantially disturbs the root system nor involves mechanized pushing, dragging, or other similar activities that redeposit excavated soil material.

  (iii) Incidental fallback.

• (d)(4) Section 404 authorization is not required for the following:

  (i) Any incidental addition, including redeposit, of dredged material associated with any activity that does not have or would not have the effect of destroying or degrading an area of waters of the United States as defined in paragraphs (d)(5) and (d)(6) of this section; however, this exception does not apply to any person preparing to undertake mechanized . ditching . in a water of the United States, which would result in a redeposit of dredged material, unless the person demonstrates to the satisfaction of the Corps, or EPA as appropriate, prior to commencing the activity involving the discharge, that the activity would not have the effect of destroying or degrading any area of waters of the United States, as defined in paragraphs (d)(5) and (d)(6) of this section. The person proposing to undertake mechanized . ditching . bears the burden of demonstrating that such activity would not destroy or degrade any area of waters of the United States.

• (d)(5) For purposes of this section, an activity associated with a discharge of dredged material destroys an area of waters of the United States if it alters the area in such a way that it would no longer be a water of the United States.
• (d)(6) For purposes of this section, an activity associated with a discharge of dredged material degrades an area of waters of the United States if it has more than a de minimis (i.e., inconsequential) effect on the area by causing an identifiable individual or cumulative adverse effect on any aquatic function.

 

State Administration of Section 404 Permits

Federal law grants states the discretion of administering section 404 permits under the Clean Water Act.  North Dakota has chosen to have the North Dakota State Department of Health administer section 404 permits in the state.  See N.D.C.C. §61-28-04(12) and N.D.A.C. art. 33-16. 

Federal law also requires that states which administer the Clean Water Act impose standards no less than imposed under federal law, but states can impose additional standards if the state deems it necessary to address issues relevant to the state.  The EPA decides whether a state's rules are at least equivalent to the federal standards.

Filling a wetland

Another way to eliminate a wetland is to fill it, but this also is regulated; that is, (as mentioned above) section 404 of the federal Clean Water act prohibits the discharge of material/fill into a waterbody without a permit.  The federal law also allows states to administer this permitting process.  North Dakota has a statute, that has not yet taken affect, which states

"...no person may discharge dredged or fill material into waters of the state unless that person has a permit from the state engineer. No person may discharge dredged or fill material in violation of a permit."  N.D.C.C. §61-38-05. 

This potential law can be found in N.D.C.C. 61-38.

North Dakota also has a regulation that requires a permit before filling a wetland.  (N.D.A.C. §89-02-01-03(7))

USDA's Role in Drainage

The U.S. Dept. of Agriculture also has a role in overseeing agricultural drainage.  In an effort to discourage (but not prohibit) agricultural producers from draining a wetland (and thereby convert the wetland into agricultural land), federal law declares a farm operator who drains a wetland as ineligible for benefits from the federal government farm program.  This law does not prohibit wetland drainage but does impose such a negative economic impact that farm operators feel that the law has the affect of prohibiting drainage.  This law is often referred to as "swampbuster".

• See 16 USC §3821 and 7 CFR Part 12.

Additional resources for information about drainage

Web site with additional information about North Dakota drainage permits http://www.swc.state.nd.us/4DLink9/4dcgi/GetSubCategoryRecord/Permits/Drain%20Permits

North Dakota Statutes

• N.D.C.C. chapter 61-32 Wetlands http://www.legis.nd.gov/cencode/T61C32.pdf

North Dakota Regulations

• N.D.A.C. 89-02-01 Drainage of Ponds, Sloughs, Lakes, or Sheetwater, or Any Series Thereof, and of Meandered Lakes http://www.legis.nd.gov/information/acdata/pdf/89-02-01.pdf
• N.D.A.C. 89-02-04 Drainage Complaint Appeals http://www.legis.nd.gov/information/acdata/pdf/89-02-04.pdf
• N.D.A.C. 89-02-05.1 Licenses for Emergency Drainage http://www.legis.nd.gov/information/acdata/pdf/89-02-05.1.pdf

Information about drainage laws in neighboring states

• Minnesota:  Minnesota Statutes chapter 103E
  • Minnesota Statutes, section 103E.005 Subd. 9.-- "drainage authority" means the board or joint county drainage authority having jurisdiction over a drainage system or project
  • Minnesota Statutes, section 103E.015 -- before establishing a drainage project, the drainage authority must consider ...
  • Minnesota Statutes, section 103E.081 -- unauthorized drain and obstruction of drainage system
  • Minnesota Statutes, section 103E.075 -- obstruction of drainage system
  • Minnesota Statutes, section 103E.202 -- a petition for a drainage project and a petition for repair
  • Minnesota Statutes, section 103E.212 et. seq. -- establish a new drainage system or improve existing system

• South Dakota:  S.D.C.L. chap. 46A-10A
  • S.D.C.L. §46A-10A-30 -- local government authorized to adopt a permit system for drainage
  • S.D.C.L. §46A-10A-20 -- Official controls ... shall embody the basic principle that any rural land which drains onto other rural land has a right to continue such drainage if ...
  • S.D.C.L. §46A-10A-31 -- recording existing drainage rights
  • S.D.C.L. §46A-10A-67 -- an easement for a drainage right may be acquired by ...
  • S.D.C.L. §46A-10A-38 -- an individual landowner may petition a board or commission to change the drainage restrictions on all or any part of his property
  • S.D.C.L. §46A-10A-16 -- a board or a county drainage commission may prepare a drainage plan for the county
  • S.D.C.L. §46A-10A-82 -- a board may maintain a drainage project
  • S.D.C.L. §46A-10A-90 -- any person who intentionally ...
  • S.D.C.L. §46A-10A-91 -- any ditch, drain, or watercourse constructed to prevent surface and overflow water from adjacent land from entering it is hereby declared a nuisance ...
    

Last updated August 30, 2010

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